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Hear ye, hear ye, all persons having business with the honorable, the United States Court of Appeals for the Ninth Circuit will now draw near.

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Give your attention and you'll be heard, for this court is now in question.

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God save the United States and this honorable court.

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Good afternoon.

[00:00:27] Speaker 00:
Welcome to the Ninth Circuit Court of Appeals.

[00:00:29] Speaker 00:
My name is Morgan Kristen.

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I'm one of the judges on the circuit court, and I'm joined today by Judges Bybee and Judge Fletcher.

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We're conducting this proceeding by Zoom, so I need to start with just a sound test.

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Judge Bybee, I take it you can see and hear me okay?

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I can see you.

[00:00:44] Speaker 02:
Yes, I can, Judge.

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Judge Kristen.

[00:00:46] Speaker 00:
Thank you.

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And Judge Fletcher?

[00:00:47] Speaker 01:
Same, yes.

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Great.

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Council of record are also participating by zoom.

[00:00:53] Speaker 00:
So could I just get a thumbs up from each of you?

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If you can tell me you can see us okay and hear us okay.

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That's two thumbs.

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Okay.

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Thank you very much for that.

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We'll proceed.

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We'll go on record in case number 24-275 Creech versus Richardson.

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Um, we received a motion to dismiss filed by the state and a motion for stay filed by petitioner in this case.

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By order dated February 16th, we gave notice that we construed the state's motion as a motion for summary affirmance.

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We allowed petitioner until February 19th to file a response and the state until February 20th to file a reply.

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We've received those, um, um, filings and we're now ready to hear argument.

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So council, when you are ready, we're ready for your argument.

[00:01:40] Speaker 04:
Thank you, your honor.

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May it please the court.

[00:01:42] Speaker 04:
Jonah Horowitz, appearing on behalf of Mr. Creech.

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I'd like to reserve five minutes in rebuttal and I'll keep my eye on the clock.

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Thank you, your honor.

[00:01:53] Speaker 04:
The state has not identified a single Ninth Circuit case doing what it's asking this panel to do, which is to affirm a habeas appeal where a COA has been granted and to do it in a summary fashion.

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The COA standard is the opposite of the summary affirmance test.

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And that's the reason why it would never be appropriate to summarily affirm where a COA has been issued.

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A COA requires a substantial showing of the violation of a constitutional right and a judicial finding that the case deserves to proceed further to a full appeal.

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The summary affirmance test is the opposite.

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It requires a finding that the claim is so unsubstantial on its face that there is no need for further argument.

[00:02:42] Speaker 04:
And I did want to talk a little bit about the situations in which this court has summarily affirmed, because I think they show how unsuited the present case is for that course of action.

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So the Hootin case is the seminal case on summary affirmance.

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There, the opening brief was one page long and raised a single claim that was clearly foreclosed by controlling precedent.

[00:03:05] Speaker 04:
Here we have a situation where the opening brief has not yet been filed at all and where the case does raise serious issues that in our view the court should spend some time dealing with on the basis of full briefing and argument before resolving.

[00:03:21] Speaker 01:
Let me ask you this, if I may.

[00:03:22] Speaker 01:
In practical terms, what additional briefing would we get?

[00:03:28] Speaker 01:
That is to say, we've got a fair amount of briefing in front of us, the legal question is actually not all that hard to understand, and the factual premises are not that hard to understand.

[00:03:39] Speaker 01:
So, what more would we know

[00:03:42] Speaker 01:
were we to treat this with full briefing and so on, which would of course necessarily require a suspension of the execution date and the clock restarted and so on.

[00:03:52] Speaker 01:
So what more would we get compared to what we now have?

[00:03:57] Speaker 04:
Yes, Your Honor, there has been a fair amount of briefing.

[00:03:59] Speaker 04:
It has been done on a highly truncated timetable because of the death warrant.

[00:04:05] Speaker 04:
So we would certainly take more time, spend more of our resources researching, preparing longer briefs, which we would be entitled to under the rules because we wouldn't be dealing with motions.

[00:04:17] Speaker 04:
We would actually be filing a full brief.

[00:04:20] Speaker 04:
And I would also point, Your Honor, to the fact that the state has raised some very significant

[00:04:27] Speaker 04:
issues in quite a cursory fashion that I think need to be unpacked quite a bit further.

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So one example.

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is the procedural default defense that the state has emphasized now in its motions.

[00:04:41] Speaker 04:
That is a defense that's based on a brand new Idaho Supreme Court decision that just came out last week.

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There's a lot more that could be said about whether that default is adequate.

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We did our best under very constrained circumstances to make an argument for the court's

[00:04:58] Speaker 04:
Uh, resolution, but that was tailored to the standard that we're dealing with now, which is summary affirmance, uh, and the vacatur of a COA and full briefing, uh, would, would, uh, in our opinion, benefit the court and give everyone some time to fully process these issues.

[00:05:18] Speaker 02:
Council, the district court issued the COA, but it seemed to have issued it more sort of reluctantly.

[00:05:26] Speaker 02:
The state asked that we dismiss the COA as improvidently granted.

[00:05:32] Speaker 02:
My understanding from what we did was that we decided to afford you an opportunity to tell us, to give us the evidence for your claim.

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and that was your opportunity.

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I just didn't see anything at all that supports your claim on the merits.

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So I don't know why you get more time for researching something when you've now had an opportunity before the district court.

[00:06:00] Speaker 02:
We gave you an opportunity to tell us what evidence you have of an evolving standard here and you haven't provided anything for us.

[00:06:08] Speaker 02:
This just feels like this is just a delay for delay's sake and it's a complete shot in the dark.

[00:06:12] Speaker 02:
There, I sort of laid it on the table for you.

[00:06:15] Speaker 04:
Thank you, Your Honor.

[00:06:16] Speaker 04:
I appreciate your candor.

[00:06:18] Speaker 04:
Needless to say, I do disagree with your assessment, respectfully, that we have no evidence to support our claim.

[00:06:24] Speaker 04:
I would submit that the statistics we've assembled compare favorably to every positive evolving standards case that the US Supreme Court has issued.

[00:06:36] Speaker 04:
And we've assembled that data with an eye to the same metrics that the Supreme Court considers.

[00:06:41] Speaker 04:
So the absence of executions of Judge Sends inmates and the number of inmates on death rows who were put there by judges sitting alone.

[00:06:51] Speaker 04:
And those numbers, in raw terms,

[00:06:55] Speaker 04:
do indicate an evolving standard under the task that the U.S.

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Supreme Court has established and as percentages.

[00:07:04] Speaker 02:
Counsel, an evolving standard that is an affirmative ethic that we should not be executing people who were sentenced by a judge without a jury,

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It's very different from simply saying there are fewer and fewer prisoners being executed these days who had a sentence that was imposed by a judge and not by a jury.

[00:07:28] Speaker 02:
That is going to be an inevitable consequence of a 20-year-old Supreme Court decision.

[00:07:33] Speaker 02:
And I don't know how that bare statistic helps you out.

[00:07:38] Speaker 02:
I saw you putting all of your eggs in the basket that it is Arizona that has diminished the number because there's a moratorium in Arizona.

[00:07:48] Speaker 02:
Do you have any evidence to suggest that the reason that the governor of Arizona issued a moratorium was because Arizona prisoners had been issued their death sentences by judges rather than juries?

[00:08:02] Speaker 04:
I don't have that evidence, Your Honor, but the Supreme Court has never demanded that evidence.

[00:08:06] Speaker 04:
And in Hall v. Florida, the Supreme Court made very clear that if a state either abolishes the death penalty or imposes a moratorium on executions, that does support an evolving standard claim, even when that claim is challenging the execution of a specific class of inmates.

[00:08:24] Speaker 04:
So in Hall v. Florida, for example,

[00:08:27] Speaker 04:
the claim related to an IQ cutoff, and the Supreme Court still counted a state like Oregon on the side of the petitioner, and Oregon had a moratorium.

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I don't believe there's any indication that the governor of Oregon had imposed that moratorium because of concerns about an IQ score cutoff.

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So I appreciate that point in an abstract sense, and I appreciate that the state has emphasized it, but I would respectfully suggest that it's foreclosed by Halby, Florida.

[00:08:58] Speaker 04:
In terms of.

[00:09:00] Speaker 01:
If I can ask you a variation on Judge Bybee's question, assuming that this counts as an evolving standard of decency.

[00:09:11] Speaker 01:
We're now 20-some years after Ring.

[00:09:15] Speaker 01:
The number of executions of judge-sentenced prisoners has gone forward, and the number of prisoners still on death row, of course, is correspondingly diminished.

[00:09:29] Speaker 01:
Why don't you have what I guess I'll call a lackey problem, such as we saw in the Clarence Allen case, where this claim was sufficiently ripe to go forward, basically on the terms that you're arguing for.

[00:09:45] Speaker 01:
While the first habeas petition was in district court, that first habeas petition didn't finish up in the district court until 2017.

[00:09:53] Speaker 01:
So why was it not ripe before 2017, and therefore, even if it's a valid claim, this is second or successive.

[00:10:05] Speaker 04:
Yes, your honor.

[00:10:06] Speaker 04:
It wasn't ripe in 2017 because judge sentence inmates were being steadily executed in Arizona and in a handful of other states at that time.

[00:10:15] Speaker 04:
And that does speak to the concern that Judge Bybee just expressed about the effect of ring.

[00:10:21] Speaker 04:
And I would respectfully disagree with the premise that

[00:10:24] Speaker 04:
the reduction in judge-sentenced executions is a result of Ring v. Arizona, because there are several dozen inmates on Arizona's death row who were sentenced by judges, and they are exactly the group of prisoners who would be getting executed in Arizona were it not for the moratorium.

[00:10:42] Speaker 04:
So the moratorium is the reason that those inmates are not being executed, and it is the dearth of judge-sentenced executions that is the strongest evidence in support of our claim.

[00:10:52] Speaker 00:
I'm struggling with your briefing to figure out why this is not successive and when your position is this claim did evolve or emerge.

[00:11:09] Speaker 00:
You've made several representations about this to the district court and she cited them in her order.

[00:11:16] Speaker 00:
The claim did not exist until information supporting the theory had come into existence.

[00:11:21] Speaker 00:
Existing precedent has not given Mr Creech clear guidance as to when this theory became viable, and the claim is based on coming to fruition of a number of trends over a long period of time.

[00:11:34] Speaker 00:
Now, it's even if it were treated like a forward competency claim that, you know, in some circumstances can avoid the S.O.S.

[00:11:41] Speaker 00:
bar,

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Even that Supreme Court authority requires that the claim be filed as soon as it becomes ripe.

[00:11:48] Speaker 00:
And I can't tell when you think this became right.

[00:11:52] Speaker 04:
Yes, Your Honor, I do think it's hard to pin it down to a date, so I don't know if I have an answer that will be totally satisfactory.

[00:12:00] Speaker 04:
I would agree with Judge Bybee that the moratorium is the single most important fact that supports our claim, and that is because Arizona.

[00:12:09] Speaker 00:
Forgive me, forgive me.

[00:12:10] Speaker 00:
So that's January of 2023.

[00:12:13] Speaker 04:
Yes, Your Honor.

[00:12:14] Speaker 00:
Okay.

[00:12:15] Speaker 00:
And what happened?

[00:12:16] Speaker 00:
I know the moratorium happened, but you think that was motivated by evolving standards of decency?

[00:12:24] Speaker 04:
Your honor, I don't think it matters what it was motivated by.

[00:12:26] Speaker 04:
I think that Hall sets forth a test for evolving standards cases that was designed to be more administrable and to prevent courts from having to inquire why a certain state abolished the death penalty, why another state might have imposed a moratorium.

[00:12:42] Speaker 04:
And in this case,

[00:12:44] Speaker 02:
So Council, if Governor Hobbs in Arizona said, I'm imposing a moratorium so that Arizona has a full and fair opportunity to review its protocols, you would still cite that as evidence for an evolving standard of decency regarding judge-sentenced people?

[00:13:03] Speaker 04:
Absolutely, Your Honor.

[00:13:04] Speaker 04:
And I would again, as I have to go back to Hall v. Florida, where there was no evidence that I'm aware of that the governor's moratorium there had anything to do with the issue presented in Hall, which was a very discreet, somewhat technical legal issue having to do with IQ scores.

[00:13:20] Speaker 04:
And the reasoning, to the extent that the panel is interested in it, the reasoning is that

[00:13:25] Speaker 04:
Hall v Florida said when a state has expressed reservations about executions or about the death penalty writ large, that does support by definition an evolving standard against any particular subgroup of people being executed.

[00:13:43] Speaker 04:
So regardless of whether that reasoning is sound or not, I do think it controls

[00:13:47] Speaker 02:
So I'm curious as to why you didn't start that broader trends towards moratoria.

[00:13:52] Speaker 02:
We've had moratoria in Illinois, I think Michigan, California, so big states.

[00:13:57] Speaker 02:
But why doesn't all of that contribute to that?

[00:14:00] Speaker 02:
I mean, you've cast this on the ring problem, and the ring problem just doesn't look like it's the motivation for anybody to do things.

[00:14:08] Speaker 02:
But there clearly have been lots of moratorium that might support a broader trend towards deciding that the death penalty itself is simply unconstitutional.

[00:14:18] Speaker 04:
Yes, I agree those moratoria also support our claim.

[00:14:21] Speaker 04:
I think Arizona is critical because Arizona has by far the largest group of death row inmates who were sentenced by judges.

[00:14:28] Speaker 04:
And it historically has executed the most people of the five states that Ring identified as judge sentencing states.

[00:14:36] Speaker 04:
So when execution stopped in Arizona, that did become a very compelling data point in support of our petition.

[00:14:46] Speaker 04:
And if I could make just one other point going to the merits that I do think speaks to Judge Bybee's original question, which is whether we're putting all our eggs in the moratorium basket.

[00:14:57] Speaker 04:
The reason that I would push back against that is because I do think it's important to remember that prior to ring, every capital jurisdiction in the country had the option of adopting a scheme like Idaho and like Arizona.

[00:15:11] Speaker 04:
and implementing judge sentencing in capital cases.

[00:15:14] Speaker 04:
And only five states made that choice.

[00:15:18] Speaker 04:
And that is exactly the kind of policy decision that the Supreme Court had identified as particularly important to evolving standards cases.

[00:15:27] Speaker 04:
So to the extent that there's concern about what the moratorium

[00:15:30] Speaker 04:
reflects, I would suggest the legislative choice is more directly on point.

[00:15:37] Speaker 01:
Help me understand that argument because it seems to me that argument may cut the other way.

[00:15:43] Speaker 01:
When did these states, Arizona and Idaho and others, adopt judge sentencing?

[00:15:52] Speaker 01:
Or is it part of

[00:15:54] Speaker 01:
most states had judge sentencing and fewer and fewer states did it?

[00:15:58] Speaker 01:
Or was it that some states, a few states, decided to adopt judge sentencing?

[00:16:04] Speaker 01:
Which of those two?

[00:16:07] Speaker 04:
Your Honor, I'm not sure about the whole scope of the history.

[00:16:10] Speaker 04:
I can tell you that my understanding is that Arizona and Idaho both had judge sentencing from the inception of the modern death penalty era, which was 1976.

[00:16:24] Speaker 01:
And do you know if they'd had it before?

[00:16:26] Speaker 04:
I don't know if they had it before, Your Honor.

[00:16:29] Speaker 04:
I would have to look into that.

[00:16:31] Speaker 01:
Yeah, because I think what we've got is a few states that do judge sentencing in the new modern era when they were trying to get more precision to get away from the void for vagueness problem that the court almost struck down the death penalty as entirely unconstitutional.

[00:16:51] Speaker 01:
So I'm having trouble seeing this as an evolving standards of decency in which there had been a lot of judge sentencing and then gradually falls away.

[00:17:04] Speaker 04:
Your Honor, I think that's fair.

[00:17:05] Speaker 04:
I would just reiterate that it's the combination of the moratorium, which is key to our theory, plus the fact that a number of states prior to ring had made a policy decision against judge sentencing, which is a legislative decision that also must be accounted for in the evolving standards analysis.

[00:17:23] Speaker 01:
And when you say they'd made a decision against judge sentencing, were they renouncing judge sentencing or were they merely not adopting judge sentencing?

[00:17:32] Speaker 04:
That's what I'm not.

[00:17:33] Speaker 04:
I believe that there were never many states that had it in the modern era, but I would have to check to confirm that, Your Honor.

[00:17:40] Speaker 00:
Council, would you like to reserve the balance of your time?

[00:17:43] Speaker 04:
I would, thank you, Your Honor.

[00:17:45] Speaker 00:
Welcome.

[00:17:45] Speaker 00:
We'll hear from opposing Council, please.

[00:17:57] Speaker 00:
Council, Council, you're muted.

[00:17:58] Speaker 00:
We can't hear you.

[00:17:59] Speaker 00:
Can you start over?

[00:18:02] Speaker 03:
Thank you, and may it please the court.

[00:18:07] Speaker 03:
Council started his argument stating that merely because the district court had granted a COA, that this court wasn't right, or this case wasn't right for summary affirmance.

[00:18:17] Speaker 03:
And I would suggest to the court that that simply is not true.

[00:18:20] Speaker 03:
And the reason it's not true is because this court has the authority to, in fact, say that the district court improvidently granted the COA.

[00:18:28] Speaker 03:
And don't mistake what I'm saying.

[00:18:30] Speaker 03:
I'm not trying to convert

[00:18:32] Speaker 03:
what you have described as a motion for summary affirmance back into a motion to dismiss because it was improvidently granted.

[00:18:41] Speaker 03:
All I'm saying is that this court can make a decision, that the district court's decision to grant a COA is not controlling by any stretch of the imagination on the question of whether this court can summarily affirm.

[00:18:55] Speaker 03:
Council has stated that while not all of their eggs are in the Arizona moratorium, it certainly appears that the vast majority of them are.

[00:19:06] Speaker 03:
I wish I had looked at the actual executive order that was entered by Governor Hobbs when she took office.

[00:19:16] Speaker 03:
It is executive order 2023-05.

[00:19:18] Speaker 03:
If you review that particular order, you will nowhere find in there the word moratorium.

[00:19:25] Speaker 03:
And in fact, this kind of goes to what Judge Bybee was talking about, and that is that the order was entered to complete a review of Arizona's entire system as far as capital punishment.

[00:19:40] Speaker 03:
Governor Hobbs was particularly concerned about methods of execution, whether they be lethal injection or whether they be the gas chamber.

[00:19:48] Speaker 03:
She was concerned about some of the problems that had arisen in Arizona with some of the prior executions.

[00:19:55] Speaker 03:
And as a result, she actually appointed an independent review, had ordered that an independent review commissioner be appointed to complete

[00:20:08] Speaker 03:
a systemic review of Arizona's death penalty and then write a report for various individuals so that there are arguably so that there could be improvements in Arizona's capital litigation or execution, I should say, execution methods.

[00:20:27] Speaker 03:
This really has nothing to do whatsoever.

[00:20:30] Speaker 03:
in Arizona, whether there are judge-sentenced murderers or jury-sentenced murderers.

[00:20:39] Speaker 03:
That executive order goes exclusively to the concern that Governor Hobbs had about the systemic problems with executions in Arizona.

[00:20:52] Speaker 03:
Council also noted that we haven't stated a Ninth Circuit case that is basically directly on point as far as summary affirmance in this case.

[00:21:03] Speaker 03:
That's true.

[00:21:04] Speaker 03:
We haven't.

[00:21:05] Speaker 03:
But because it doesn't exist.

[00:21:07] Speaker 03:
Summary affirmances are, in fact, fairly rare across the country.

[00:21:11] Speaker 03:
But what we have cited is that Allen versus

[00:21:16] Speaker 03:
Ornowski, if I'm pronouncing that last name correct.

[00:21:19] Speaker 03:
That is the case involving the lackey claim and also the infirmament claim.

[00:21:26] Speaker 03:
The defendant was so old, he was arguing it couldn't be executed.

[00:21:32] Speaker 03:
Incredibly, at least to me,

[00:21:35] Speaker 03:
Creech's attorneys have never addressed Allen in any way, shape, or form.

[00:21:40] Speaker 03:
And I would suggest, while it's not exactly on all fours, because it involves a lackey claim and an infirmity issue, it is really close.

[00:21:55] Speaker 03:
Because the same legal principles apply.

[00:21:59] Speaker 03:
A lackey claim continues to evolve, if you will.

[00:22:05] Speaker 03:
just as an evolving standards of decency claim continues to evolve.

[00:22:10] Speaker 03:
It gets better with age, as would an evolving standards of decency claim.

[00:22:16] Speaker 03:
But that doesn't mean that it's not right.

[00:22:20] Speaker 03:
at an earlier point.

[00:22:22] Speaker 03:
And I would suggest, I believe it was Judge Bybee again, that this claim became right at the time that the United States Supreme Court, or shortly, very shortly thereafter, issued Ring.

[00:22:34] Speaker 03:
Because everybody knew at the point that Ring was issued that there was going to be a last man standing that had been executed, or that had been sentenced to death by a judge.

[00:22:47] Speaker 03:
There was going to be somebody left

[00:22:50] Speaker 03:
because we couldn't use judges to impose the death penalty any longer.

[00:22:56] Speaker 03:
And so there would be somebody left.

[00:22:58] Speaker 03:
At that point, everyone in the country should have known that that was going to happen.

[00:23:04] Speaker 03:
And so I would suggest it is at that point.

[00:23:08] Speaker 03:
If it's not at that point, perhaps a few months later, maybe even a year or two, but certainly it is not

[00:23:17] Speaker 03:
Ring was issued in 2002.

[00:23:20] Speaker 03:
It's not 21 years after Ring was issued.

[00:23:24] Speaker 03:
On the eve of an execution, I think it's very, very important, as noted by Judge Bybee,

[00:23:31] Speaker 03:
in laying out basically the cards on the table, the elephant in the room.

[00:23:37] Speaker 03:
It is the state's position that based upon the timing of this particular petition, both the post-conviction petition and the habeas petition, that this is nothing more than the delay tactic.

[00:23:49] Speaker 03:
The United States Supreme Court denied certiorari based upon this court's, in fact, this panel's decision on the first habeas case.

[00:24:00] Speaker 03:
Two days later, the state sought a death warrant.

[00:24:03] Speaker 03:
And the very next day, the successive petitions were filed.

[00:24:11] Speaker 03:
Those petitions contain very elaborate charts and graphs, as the court could see in the materials that were presented to the district court.

[00:24:23] Speaker 03:
This was a claim that was basically being held in the back pocket of Creech's council, waiting until there was an actual execution that had been scheduled.

[00:24:35] Speaker 00:
And that is- Council, forgive me for interrupting.

[00:24:38] Speaker 00:
This panel did deny 2254, as you have described.

[00:24:44] Speaker 00:
What should we make about the much more recent decision by the clemency board

[00:24:50] Speaker 00:
in Idaho to grant a hearing in this case, if anything, how does that play into the evolving standards of decency argument?

[00:24:57] Speaker 03:
I don't think it plays into it in any way, shape or form.

[00:24:59] Speaker 03:
In fact, clemency was denied.

[00:25:01] Speaker 03:
Yes, there were three members of the commission that would have recommended to Governor Little that clemency commutation be granted, but I would suggest that it has absolutely nothing to do with anything.

[00:25:16] Speaker 03:
At best, it's a red herring.

[00:25:20] Speaker 03:
It just doesn't mean anything.

[00:25:23] Speaker 03:
It's not based upon

[00:25:28] Speaker 03:
I recognize that the three commissioners that recommended, were going to recommend a commutation, specifically noted that Creech had been sentenced by a judge, whereas we don't do that anymore.

[00:25:46] Speaker 03:
But that doesn't mean he shouldn't be.

[00:25:50] Speaker 03:
That doesn't mean there's an evolving standard of decency.

[00:25:54] Speaker 03:
That means there are three people that simply

[00:25:57] Speaker 03:
believed that should not be executed, in addition to the fact that there were so many things that played into that, into those three individuals' decisions.

[00:26:08] Speaker 03:
Addressing another question that judges- Can I just- Yes.

[00:26:11] Speaker 00:
Before you leave that too quickly, I'm not sure it's moving.

[00:26:16] Speaker 00:
And the reason I meant that is because we're federal judges, we're quite removed.

[00:26:20] Speaker 00:
They're not just three average Joe citizens, they're three people

[00:26:24] Speaker 00:
pointed by whatever the state process is, you know, to make that very special decision and they're local.

[00:26:31] Speaker 00:
So they're reflecting perhaps just to play devil's advocate, perhaps the reviews of the community that has paid to house Mr. Creeks for all of these decades and suffered the loss of an inmate in this case in prison.

[00:26:46] Speaker 00:
So again, just to push back on that, I just want to push on that and see what your best response is about whether that should play into the evolving standards of decency argument.

[00:26:54] Speaker 03:
Judge Christian, actually they are average Joes.

[00:26:59] Speaker 03:
These are not individuals that have any particular expertise in any particular area.

[00:27:06] Speaker 00:
Okay, but I'm not trying to signal any disrespect by that.

[00:27:10] Speaker 00:
That's the state's process.

[00:27:11] Speaker 00:
Quite the contrary, I'm respectful of the state's process.

[00:27:14] Speaker 00:
That's their process.

[00:27:15] Speaker 00:
And the fact that it came out, you know, quite unusually in a three-to-three tie, in my experience.

[00:27:20] Speaker 00:
I just wonder what's your best case that I should in fact disregard that?

[00:27:27] Speaker 03:
Your Honor, with all due respect to those three commissioners,

[00:27:32] Speaker 03:
Based upon what happened in the Pezzuto commutation hearing, there are certain members of the commission, and I would suggest particularly those three, that are simply opposed to the death penalty in any fashion.

[00:27:46] Speaker 03:
And while that may have been a rationale that the three talked about, it was near as I could tell from their very short analysis, if you can even call that, it was a very minor fact.

[00:28:03] Speaker 03:
And so evolving standards of decency don't involve just three individuals within the community.

[00:28:10] Speaker 03:
It's a national stigma.

[00:28:12] Speaker 03:
And I would suggest that there's absolutely no evidence that there is any kind of national evolution that bars the execution of judge sentence murders.

[00:28:27] Speaker 00:
There may not be.

[00:28:28] Speaker 00:
And I think I signaled clearly that I have

[00:28:32] Speaker 00:
question here, which is why this isn't successive.

[00:28:35] Speaker 00:
But going forward, it seems to me that that's exactly where federal courts would be looking.

[00:28:40] Speaker 00:
What's happening?

[00:28:41] Speaker 00:
Maybe not in one state, but across the board and that clemency boards and their views would be views that we would take very seriously.

[00:28:53] Speaker 03:
But again, it was three individuals from the board, one commission as opposed to boards from across the country.

[00:29:03] Speaker 03:
Although there are, as counsel indicated when ring was issued, there were only five states that used judge sentencing in capital cases.

[00:29:11] Speaker 03:
That is correct.

[00:29:14] Speaker 00:
Forgive me for interrupting.

[00:29:15] Speaker 00:
I didn't mean to cut you off.

[00:29:17] Speaker 00:
You mentioned that you thought that this case would have become ripe at the time Ring was adopted.

[00:29:21] Speaker 00:
Perhaps maybe when Shera was adopted, when Ring was made known that Ring was not going to be retroactive.

[00:29:29] Speaker 00:
Wouldn't that be a better cut off point?

[00:29:31] Speaker 03:
Arguably, Your Honor, that would be a better point in time, but

[00:29:39] Speaker 00:
So that was 2004, and that was prior to the amendment of this petition that we're talking about, right?

[00:29:45] Speaker 03:
Exactly.

[00:29:46] Speaker 03:
And if you look at Alan, Alan particularly talks about that there were various stages that the claim, the lackey claim, could have been raised when the initial petition was filed.

[00:30:01] Speaker 03:
when the amended petition was filed, or at any time during the course of those habeas proceedings.

[00:30:07] Speaker 03:
And I believe that that's what Judge Brailsford referred to, was referring to in her decision when she said, you know, you had years during the litigation of your federal habeas case to raise this claim, and it wasn't raised.

[00:30:23] Speaker 03:
Instead, it was saved until the last conceivable second before a scheduled execution.

[00:30:29] Speaker 01:
Well, the district court didn't decide the first petition until sometime in 2017.

[00:30:37] Speaker 03:
That's correct, your honor.

[00:30:40] Speaker 03:
And as I read Alan, Creech could have sought amendment of his petition any time prior to the judgment being entered.

[00:30:55] Speaker 03:
Now, I didn't move.

[00:30:58] Speaker 03:
Just a minute.

[00:30:59] Speaker 03:
If I don't move, the lights go off.

[00:31:01] Speaker 03:
I'm sorry.

[00:31:03] Speaker 03:
Creech never moved to a mint.

[00:31:06] Speaker 03:
And to raise this claim, and I think that's what Alan is saying, and what the district court said in this case, is that he had that, there was that opportunity to raise this claim at any of those points, and particularly

[00:31:21] Speaker 01:
And the answer to the 2017 date, I gather, is the Arizona moratorium, which was put into effect after 2017.

[00:31:31] Speaker 01:
So could you respond to the argument that the Arizona moratorium is an important datum here?

[00:31:38] Speaker 03:
Your Honor, I don't think it's important at all.

[00:31:41] Speaker 03:
Because?

[00:31:42] Speaker 03:
Yes, and the reason for that is because the moratorium, if you can call it that,

[00:31:49] Speaker 03:
I put moratorium in quotes, is really not a moratorium.

[00:31:52] Speaker 03:
It's simply they want to study their methods of execution and make sure that they're constitutional.

[00:32:00] Speaker 03:
There's nothing that prohibits, once that study is completed, there's nothing that prohibits Judge Hobbs, excuse me, Governor Hobbs, from lifting that moratorium or that order.

[00:32:17] Speaker 03:
and have allowing the Arizona legislature or whatever body that they have in Arizona to enact procedures that are constitutional for an execution.

[00:32:32] Speaker 03:
That order was not entered to prevent the execution of judge-sentenced murders.

[00:32:42] Speaker 03:
It was entered to study the execution of all murders.

[00:32:47] Speaker 03:
And so I would suggest that it really, quite frankly, I'm surprised that Creech has so many eggs in that basket that rely upon the moratorium because of the order.

[00:33:01] Speaker 03:
I keep saying moratorium because I didn't realize it isn't really a moratorium until I actually read it in the last 24 hours, was able to locate and find it.

[00:33:10] Speaker 02:
I think that the point is that when the governor ordered the study, the attorney general said he would not seek any death warrants until the study was completed.

[00:33:20] Speaker 02:
So it's effectively a moratorium and maybe more functionally imposed by the state attorney general rather than by Governor Hobbs.

[00:33:28] Speaker 03:
And I don't disagree with that, Judge Bybee.

[00:33:30] Speaker 03:
And in fact, if I understand the history correctly, I believe it was the Arizona attorney general

[00:33:38] Speaker 03:
actually ask that a death warrant be withdrawn until this particular study could be completed.

[00:33:47] Speaker 00:
Council, if you could get back to Judge Fletcher's question, because whether we call it a moratorium or not, they hit pause, right?

[00:33:53] Speaker 00:
The governor hit pause one to study the situation.

[00:33:56] Speaker 00:
Maybe that was a protocol issue.

[00:33:57] Speaker 00:
Maybe I don't want to read too much into it.

[00:34:00] Speaker 00:
But, um, the Judge Judge Fletcher was trying to probe.

[00:34:04] Speaker 00:
Why isn't that meaningful visibly?

[00:34:07] Speaker 00:
They were evolving standards of decency claim.

[00:34:09] Speaker 00:
And I'm not sure I've heard your your response.

[00:34:13] Speaker 03:
Judge Christian, again, it applies to all executions.

[00:34:18] Speaker 03:
And so I struggle to understand how it tells anyone that there is an evolving standard of decency related to judge-sentenced executions as opposed to jury-sentenced murders.

[00:34:40] Speaker 00:
That answers my question.

[00:34:41] Speaker 00:
Thank you.

[00:34:42] Speaker 03:
You bet, thank you.

[00:34:43] Speaker 03:
And again, I would go back and.

[00:34:52] Speaker 03:
an employer of the court.

[00:34:53] Speaker 03:
I know the court has read Allen, but Allen is a very, very compelling decision.

[00:35:00] Speaker 03:
I know that there have been questions regarding how this is any different from a lackey claim, and the state would suggest in fact it is not.

[00:35:10] Speaker 03:
There was one question, I believe it was Judge

[00:35:14] Speaker 03:
Letcher might have been a Judge Bybee about states using judge sentences.

[00:35:21] Speaker 03:
Idaho used judges to sentence because, and there's actually, I can't remember the name of the Idaho opinion, but there's actually a decision that was issued, I believe it was in the 80s, that talks about why Idaho did that, and that was to provide more consistency.

[00:35:38] Speaker 03:
They were very concerned

[00:35:40] Speaker 03:
that juries would be all over the board.

[00:35:44] Speaker 03:
And based upon the Supreme Court precedent that had been issued at that time, Idaho wanted to provide some level of consistency when it came to imposition of the death penalty and felt that it was best that judges, that would be better accomplished by judges.

[00:36:03] Speaker 03:
Your honors, unless there are any further questions, we would ask that the court summarily affirm the district court.

[00:36:11] Speaker 03:
Thank you.

[00:36:12] Speaker 00:
Thank you, Council Judge Bybee.

[00:36:13] Speaker 00:
Judge Fletcher, any further questions for the state?

[00:36:16] Speaker 00:
No, doesn't appear that there are.

[00:36:17] Speaker 00:
Thank you for your argument, counsel.

[00:36:19] Speaker 00:
We'll hear from opposing counsel, please.

[00:36:22] Speaker 04:
Thank you, Your Honor.

[00:36:23] Speaker 04:
With respect to the COA, it's true as opposing counsel says that this court has the authority to revoke the COA, but the state has not provided any reason that is consistent with any precedent of this court for why the COA ought to be vacated.

[00:36:38] Speaker 00:
There's nothing in this case.

[00:36:40] Speaker 00:
Council, if I could get you, whether it's a COA or not, it seems to me that we're all struggling with the same.

[00:36:48] Speaker 00:
bottom line questions.

[00:36:50] Speaker 00:
And the first is, why isn't this successive?

[00:36:52] Speaker 00:
And I just don't hear a strong argument from you.

[00:36:55] Speaker 00:
I'm going to give you another chance to persuade me.

[00:36:57] Speaker 00:
What am I missing?

[00:36:59] Speaker 04:
Yes.

[00:36:59] Speaker 04:
Yes, Your Honor.

[00:37:00] Speaker 04:
I do think executions are absolutely pivotal.

[00:37:03] Speaker 04:
And it is just the reality that people who were sentenced to death by judges continued to be executed throughout the time period that the state is highlighting as when we supposedly should have brought this claim.

[00:37:17] Speaker 04:
And that would have been the first response to this petition had it been asserted.

[00:37:21] Speaker 04:
at any point prior to the moratorium, they would have said last.

[00:37:26] Speaker 00:
Doesn't that argument only work if you can persuade us that there's a meaningful nexus between what you're calling the moratorium in Arizona and the fact that some of those folks are on death row because they were sentenced by judges rather than juries?

[00:37:46] Speaker 00:
I don't see that.

[00:37:48] Speaker 04:
Yes, Your Honor.

[00:37:48] Speaker 04:
The Supreme Court has never required a nexus, and Halsey, Florida, counted 15 or 16 states that had actually abolished the death penalty.

[00:37:56] Speaker 04:
And there was no indication that any of those states, or any consideration of why those states had abolished the death penalty.

[00:38:03] Speaker 04:
That is the state of evolving standards law.

[00:38:06] Speaker 01:
But your argument is more precise than that.

[00:38:09] Speaker 01:
Your argument is that there has been an evolving standard of decency with an increasing level of disapproval of judge sentencing.

[00:38:19] Speaker 01:
And a general moratorium doesn't tell us very much, if anything, about objections to the specific thing that you're now challenging.

[00:38:29] Speaker 01:
It has to do with hesitations about the death penalty in some much more general sense.

[00:38:34] Speaker 01:
That's my problem.

[00:38:35] Speaker 01:
So irrespective of what the other cases have done with respect to evolving standards and so on, you've got a very specific evolving standard for which you are arguing, but I don't see the Arizona moratorium being very closely tied to your rationale.

[00:38:54] Speaker 04:
Yes, Your Honor, and I apologize if I'm repeating myself, but all of those comments could have been made in Halvey, Florida.

[00:38:59] Speaker 04:
That was an even more specific claim that the evolving standards prohibited the execution of inmates who had an IQ score below a certain cutoff.

[00:39:10] Speaker 04:
And so the fact that the Supreme Court counted moratorium states and abolition states does, in our view, control this court's analysis here.

[00:39:19] Speaker 04:
And I don't hear the state acknowledging Hall or engaging with that rule of law or giving you any reason to adopt a different approach here.

[00:39:27] Speaker 01:
Okay, now your adversary tasks you with ignoring Allen.

[00:39:32] Speaker 01:
Do you have any comments specifically directed to Allen?

[00:39:36] Speaker 04:
Absolutely, Your Honor.

[00:39:36] Speaker 04:
Allen is very easily distinguished.

[00:39:38] Speaker 04:
A lackey claim, by definition, gets stronger as the inmate ages.

[00:39:42] Speaker 04:
That's what a lackey claim is.

[00:39:45] Speaker 04:
I said, I've been on death row for too long, and that's the basis of my Eighth Amendment objection to an execution.

[00:39:51] Speaker 04:
And that is not true of our claim.

[00:39:52] Speaker 04:
It is easy to imagine a world where no moratorium was imposed in Arizona, and those inmates would be getting executed regularly right now.

[00:40:00] Speaker 04:
So it really would be unreasonable to fault Mr. Creech for not predicting that the moratorium would be imposed and that these executions would diminish to zero, which is where they are now, and which is where they were not at any earlier point in time that he could have raised.

[00:40:14] Speaker 04:
this claim.

[00:40:19] Speaker 04:
And just very, very briefly, all the points the state made about the Arizona moratorium would be true of the Oregon moratorium in Hall.

[00:40:26] Speaker 04:
There's no need to identify it being triggered by a certain class of death or inmates.

[00:40:33] Speaker 04:
And I see my time has expired.

[00:40:37] Speaker 00:
Are there any further questions from the panel?

[00:40:40] Speaker 00:
No.

[00:40:41] Speaker 00:
Thank you for your argument, counsel.

[00:40:42] Speaker 00:
Before we let you go,

[00:40:44] Speaker 00:
Let me just say we're mindful of the time frame here.

[00:40:46] Speaker 00:
We will rule as soon as we can.

[00:40:50] Speaker 00:
I just want to clarify with both of you, it is our understanding there are two 1983 claims pending in the district court.

[00:40:56] Speaker 00:
We do not have those before us at this time.

[00:40:59] Speaker 00:
We're also aware that the Idaho Supreme Court has a similar ring-like claim.

[00:41:03] Speaker 00:
It's ruled, and I think a cert petition is pending on that.

[00:41:06] Speaker 00:
But as far as I know,

[00:41:09] Speaker 00:
There aren't other proceedings pending now.

[00:41:11] Speaker 00:
And if I'm wrong about that, I would really appreciate you clarifying that.

[00:41:15] Speaker 04:
That's absolutely correct, John.

[00:41:18] Speaker 00:
All right.

[00:41:19] Speaker 04:
That is also my understanding, Your Honor.

[00:41:21] Speaker 01:
Do we have any anticipated time frame with the two claims in the district court?

[00:41:27] Speaker 03:
Your Honor, I'm not handling those two cases.

[00:41:30] Speaker 03:
A deputy's attorney general, the Idaho Department of Corrections are handling those.

[00:41:36] Speaker 03:
But in talking to those individuals, they expect a decision anytime from Judge Brailsford.

[00:41:44] Speaker 03:
And again, as I understand it, the issue before Judge Brailsford are the motions to stay, the execution.

[00:41:51] Speaker 03:
Those are the two pivotal motions that have been filed in both of those cases.

[00:41:57] Speaker 00:
Mr Horowitz, did you have a different understanding?

[00:41:59] Speaker 04:
No, Your Honor, we haven't been told the timeline either, and my office is handling those cases.

[00:42:05] Speaker 00:
All right.

[00:42:06] Speaker 00:
If there's nothing further, we'll thank you for your advocacy.

[00:42:09] Speaker 00:
We'll take this matter under advisement and we'll be off record.

[00:42:12] Speaker 03:
Thank you, Your Honor.

[00:42:13] Speaker 03:
Thank you, Your Honor.